Nichols v. Dexter, Case Number: 5690

• Court: Supreme Court of Oklahoma
• Writing for the Court: DUDLEY, C.
• Citation: 152 P. 817,1915 OK 848,52 Okla. 152
• Decision Date: 02 November 1915
• Docket Number: Case Number: 5690
• Parties: NICHOLS et al. v. DEXTER.

1915 OK 848
152 P. 817
52 Okla. 152

NICHOLS et al.
v.
DEXTER.

Case Number: 5690

Supreme Court of Oklahoma

Decided: November 2, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Presentation for Review--Denial of New Trial. Where the overruling of the motion for a new trial is not assigned as error in the petition in error, errors alleged to have occurred during the trial are not properly presented, and cannot be reviewed.

2. RECEIVERS--Action on Bond-- Petition. In an action upon a receiver's bond, by the obligee against the principal and sureties thereon, the failure to attach to the petition a copy of the order appointing the receiver does not render it fatal as against a general demurrer.

3. SAME. Petition upon receiver's bond examined, and held to constitute a cause of action as against a general demurrer.

Error from District Court, Stephens County; Frank M. Bailey, Judge.
Action by John Dexter against O. M. Nichols and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. B. Wilkinson, for plaintiffs in error.

J. B. Moore and Womack & Brown, for defendant in error.

DUDLEY, C.

¶1 On June 26, 1911, the defendant in error, plaintiff below, commenced this action in the district court of Stephens county, against the plaintiffs in error, defendants below, upon a receiver's bond executed by the defendant Nichols, as principal, and the defendants Johnson and Gamblin, as sureties, on November 12, 1907, in an action pending in the United States District Court for the Southern District of the Indian Territory, at Ardmore, wherein the plaintiff herein was plaintiff, and J. W. Starr and others were defendants. Issues were joined and the case tried to the court and jury, resulting in a judgment in favor of the plaintiff for $ 605, with interest, from which the defendants have appealed.

¶2 There are eight assignments of error in the petition in error, all of which, except the third, which is, "The court erred in overruling defendants' demurrer to plaintiff's petition," are alleged errors occurring during the trial. The overruling of the motion for a new trial is not assigned as error in the petition in error, and it therefore follows that none of the assignments of error, except the third, can be considered here. Beall v. Mutual Life Ins. Co., 7 Okla. 285, 54 P. 474; Martin et al. v. Gassert, 17 Okla. 177, 87 P. 586; Kimbriel v. Montgomery, 28 Okla. 743, 115 P. 1013; Meyer v. James, 29 Okla. 7, 115 P. 1016; George v. Moore, 32 Okla. 842, 124 P. 36; Turner v. First Nat. Bank, 40 Okla. 498, 139 P. 703; Adams v. Norton et al., 41 Okla. 497, 139 P. 254.

¶3 The only question properly presented for review is the sufficiency of the petition, as against a general demurrer. The petition alleges, in substance: That in October, 1907, the plaintiff commenced an action in the United States Court for the Southern District of the Indian Territory, at Ardmore, against J. W. Starr and others, to recover possession of certain real estate, located in the then Indian Territory, and asked that a receiver be appointed to collect the rents and profits therefrom during the pendency of said action; that, at the time of the commencement of said...